Not Out Kind, Dear

the White House and Justice Department under Reagan and Bush I, believes that the Supreme Court was without jurisdiction to decide what was fundamentally a political question. The Florida vote was a statistical tie, and there were several politically accountable persons and entities—from Florida secretary of state Katherine Harris to the U.S. Congress—that were statutorily or constitutionally empowered to resolve that tie. In Calabresi’s view, Bush v. Gore demonstrates the price we pay for being a nation of court-worshipers— comfortable with thinking of courts, rather than legislatures, as referees of the political process itself.

In one respect, however, it might not be so surprising to find no real conservative defense of Bush v. Gore here. Conservatives have always had good reason to be ambivalent about the majority opinion, because it reached a politically desirable result but on grounds that even many conservatives consider questionable. A 7-2 majority found that the hand recount violated the Equal Protection Clause because there were no consistent statewide standards for the counters to use in divining the “intent” of the undervoters—meaning that similarly situated voters could be accorded disparate treatment. Writing in The New Criterion soon after the dust had settled, Judge Robert Bork called the equal-protection holding “fraught with complications and dangers,” and he was right. Not only does the Court’s opinion have the potential to constitutionalize all disparities in vote-counting across a given state (which is why the majority opinion cautioned that its holding was “limited to the present circumstances”) but its reliance on the Equal Protection Clause sounds more like Earl Warren than William Rehnquist. In fact, several of the essays here argue that the conservative majority was being hypocritical when it relied on the same legal maneuver that it had long criticized in certain Warren Court decisions.

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Digby Anderson

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the White House and Justice Department under Reagan and Bush I, believes that the Supreme Court was without jurisdiction to decide what was fundamentally a political question. The Florida vote was a statistical tie, and there were several politically accountable persons and entities—from Florida secretary of state Katherine Harris to the U.S. Congress—that were statutorily or constitutionally empowered to resolve that tie. In Calabresi’s view, Bush v. Gore demonstrates the price we pay for being a nation of court-worshipers— comfortable with thinking of courts, rather than legislatures, as referees of the political process itself.

In one respect, however, it might not be so surprising to find no real conservative defense of Bush v. Gore here. Conservatives have always had good reason to be ambivalent about the majority opinion, because it reached a politically desirable result but on grounds that even many conservatives consider questionable. A 7-2 majority found that the hand recount violated the Equal Protection Clause because there were no consistent statewide standards for the counters to use in divining the “intent” of the undervoters—meaning that similarly situated voters could be accorded disparate treatment. Writing in The New Criterion soon after the dust had settled, Judge Robert Bork called the equal-protection holding “fraught with complications and dangers,” and he was right. Not only does the Court’s opinion have the potential to constitutionalize all disparities in vote-counting across a given state (which is why the majority opinion cautioned that its holding was “limited to the present circumstances”) but its reliance on the Equal Protection Clause sounds more like Earl Warren than William Rehnquist. In fact, several of the essays here argue that the conservative majority was being hypocritical when it relied on the same legal maneuver that it had long criticized in certain Warren Court decisions.